| Matter of Miller v New York State Dept. of Corr. & CommunitySupervision |
| 2013 NY Slip Op 03034 [105 AD3d 677] |
| April 30, 2013 |
| Appellate Division, First Department |
| In the Matter of Michael Miller, Also Known as MikeJohnson, Respondent, v New York State Department of Corrections andCommunity Supervision, Appellant. |
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Order, Supreme Court, New York County (Marcy L. Kahn, J.), entered on or aboutSeptember 9, 2011, which granted the petition brought pursuant to CPLR article 78seeking an order directing respondent Department of Corrections and CommunitySupervision (DOCCS) to terminate petitioner's parole administratively pursuant toCorrection Law § 205 (4), and accordingly ordered respondent to grant petitionertermination of sentence, unanimously reversed, on the law, without costs, the petitiondenied, and the proceeding dismissed.
Correction Law § 205 provides, in pertinent part, that DOCCS "must granttermination of sentence after three years of unrevoked presumptive release or parole to aperson serving an indeterminate sentence for a class A felony offense defined in[Penal Law article 220 or 221]" (Correction Law § 205 [4] [emphasis added]).Here, although petitioner's parole was not adjudicated to have been revoked until May 5,2005, by operation of Penal Law § 70.40, that revocation had the effect ofinterrupting his indeterminate sentence retroactively as of the date of his delinquency,which was December 19, 2004 (see Penal Law § 70.40 [3] [a]). Since hissentence was interrupted, petitioner was not "serving" his indeterminate sentence onFebruary 12, 2005, the effective date of Correction Law § 205 (4), as required bythat statute for termination of sentence (cf. People ex rel. Rosa v Warden, Edgecombe CorrectionalFacility, 80 AD3d 525, 526 [1st Dept 2011] [holding that the petitioner was"entitled to have his sentence terminated because[*2]. . . he had completed over two years ofuninterrupted presumptive release from the statute's effective date prior to havingit revoked on January 22, 2008" (emphasis added)]). Concur—Acosta, J.P.,Moskowitz, Renwick, Freedman and Clark, JJ.